Opinion
E071337
11-12-2019
THE PEOPLE, Plaintiff and Respondent, v. STEVEN MICHAEL WILLIAMS, Defendant and Appellant.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Hennick, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FSB17000744) OPINION APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Reversed with directions. Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Tami Hennick, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Steven Michael Williams exposed his penis and masturbated in front of several observers in front of a grocery store in Loma Linda. When San Bernardino County Deputy Sheriff Bernabe Ortiz responded to the calls about the indecent exposure, he found defendant sitting in his vehicle. He appeared to reach for something between the front seat and console. Defendant was removed from the vehicle and a two-foot long wooden baton/billy club was found by the driver's seat. Further, when defendant exited the vehicle, his pants fell down to his knees.
Defendant was charged in a first amended information with possession of a billy/blackjack (Pen. Code, § 22210), a felony; a misdemeanor charge of indecent exposure (§ 314, subd. (a)); and two misdemeanor charges of obstructing a peace officer or EMT (§ 148, subd. (a)(1)). The two charges of obstructing a peace officer were dismissed prior to trial. The jury found defendant guilty of the misdemeanor indecent exposure and not guilty of possession of the billy club/baton. He was sentenced to serve 180 days in county jail with credit for time already served. He was also ordered to mandatory lifetime registration as a sexual offender pursuant to section 290.
All further statutory references are to the Penal Code unless otherwise indicated.
It was further alleged defendant had suffered one prior serious or violent felony conviction within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i). Since he was only convicted of a misdemeanor, the allegation was no longer applicable.
Defendant makes two claims on appeal (1) the prosecutor committed misconduct by continually positing questions to witnesses calling for speculative testimony; and (2) this court should review the sealed record of the in camera hearing on defendant's Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL HISTORY
Jose Sanchez was at a shopping center in Loma Linda on the afternoon of February 17, 2017. He was waiting in the car for his wife, Stacie Garcia, who was applying for a job in a nearby restaurant; his three-year-old daughter was in the car with him. Defendant was in another vehicle and parked in front of Sanchez. Defendant got out of his vehicle and pulled down his pants exposing his penis. He began masturbating with his right hand while facing three or four women who exited a grocery store. He masturbated for two or three minutes. His penis was erect. Defendant stayed near his open driver's side door.
The girls got into a vehicle and drove off. Defendant got back in this vehicle and moved his car near another woman who was in the parking lot. He got out of his vehicle and started masturbating again. Sanchez was not sure if the woman looked at defendant. She got in her vehicle and left.
Defendant moved his car again, parking near Sanchez. At this point, Garcia had returned to the car. Sanchez called the police because he was offended by defendant's actions. Defendant got out of his vehicle a third time and started masturbating by his open driver's side door. Sanchez did not actually see defendant's penis the third time because defendant's car was in the way but it appeared he was masturbating based on his movements. Sanchez did not see any girls nearby. Garcia started recording defendant with her cellular telephone.
Sanchez told the police dispatcher that defendant was masturbating in the parking lot and looking at girls as they walked by. Garcia described defendant's vehicle and gave the license plate number. Sanchez was absolutely certain that defendant had his penis exposed and was masturbating.
Garcia videotaped defendant when she returned to the car. She said while recording, "fucker, I'm fucking recording your fucking perverted ass." Garcia was offended by defendant's actions. She could not see defendant's lower half of his body but it was clear what he was doing. Defendant continued masturbating until the police arrived; he got back in his car. When the police arrived, Garcia observed defendant appear to be reach for something next to him in the car.
Garcia did not witness the first two incidents.
San Bernardino County Sheriff's Deputy Maria Gascon responded to the shopping center in Loma Linda based on the report of indecent exposure. She searched the parking lot for the vehicle, which had been described by Sanchez. She found the vehicle and approached. Defendant was sitting in the driver's seat holding his cellular telephone in his left hand. She could not see his right hand but he appeared to be reaching for something.
Defendant's window was down and Deputy Gascon advised him she needed to see his hands. At that point, Deputy Ortiz arrived to assist Deputy Gascon. After Deputy Gascon told him she had seen defendant reach for something in the car, he approached the driver's side of the vehicle. Deputy Ortiz ordered defendant to "stop reaching," to get off his phone, and to exit the car. Deputy Ortiz observed defendant reaching for something in between the driver's seat and the center console of the vehicle. Deputy Ortiz opened the door and defendant got out of the car. Defendant's pants were down to his knees but he was wearing underwear. Deputy Ortiz asked defendant why his pants were all the way down and defendant responded he did not know.
Deputy Ortiz searched defendant's vehicle. He found a two-foot wooden baton/billy club underneath the driver's seat near the center console. It was solid wood. The baton/billy club, in Deputy Ortiz's experience, could be used as a weapon and could inflict injury. Deputy Ortiz also found a bottle of lotion in defendant's pants pocket.
Defendant presented evidence in his defense that the billy club/baton found in this vehicle belonged to his grandfather, Clifton Rollins, and that it was a "tire thumper" used to determine if tires were properly inflated on large trucks. Rollins owned the vehicle in which defendant was arrested. Defendant was waiting in the shopping center parking lot for Rollins to finish a medical appointment.
DISCUSSION
A. PROSECUTOR MISCONDUCT
Defendant contends the prosecutor committed misconduct when he repeatedly asked Sanchez and Garcia to speculate whether passersby noticed defendant masturbating, and were offended.
1. ADDITIONAL FACTS
Prior to trial beginning, defendant's counsel stated on the record that there had been a discussion in chambers regarding witnesses testifying as to other individuals seen passing by and observing defendant masturbate. Defendant's counsel asked that the witnesses not be allowed to speculate as to whether these other witnesses appeared disgusted or offended by defendant's actions. The prosecutor clarified he was not going to ask the witnesses whether they knew if the other witnesses were offended or annoyed, but would ask them what reaction they observed of the other witnesses.
The trial court stated that speculation was not allowed under the rules of evidence. The trial court admonished the prosecutor, "when we get to that line of questioning to your witnesses, keep your questions tight." The trial court reiterated that the rules of evidence did not allow speculation. It stated, "No speculation. Counsel, I will allow you to discuss how that line of questioning might go. The Court is not going to jump in at this point. Obviously, that objection would lie and it would be appropriate."
While questioning Sanchez, the prosecutor asked "What did you see these women do when he was directing his—." Sanchez quickly answered, "They just looked shocked and quickly—" Defendant objected on grounds of speculation. The objection was sustained and the testimony was stricken. The prosecutor then asked, "What did you see them do after they looked in his direction?" Sanchez responded, "Like I said, they looked like they were shocked and then turn—" Defendant's counsel objected again on grounds of speculation. The trial court responded, "One moment. That answer is coming in. Ladies and gentlemen, that is opinion evidence."
The prosecutor later asked what defendant was doing before the women came out of the grocery store. Sanchez responded, "He kind of seemed like he was picking who he wanted to do that to." Defendant's objection on speculation ground, and his motion to strike the testimony, were granted.
As for the second woman defendant parked near, the prosecutor asked, "Where was she in relation to him. How far was she from him to her?" Sanchez responded, "One car space." The prosecutor asked, "Was he standing directly facing her?" Sanchez stated, "Not exactly." The prosecutor then asked, "Tell us," and Sanchez responded "He was facing his window with his door open and she was on the left and he would turn and look at her, then masturbate, and turn back to the car. [¶] I guess he didn't want to get caught." Defendant's objection on speculation grounds was sustained and the trial court struck the testimony.
The prosecutor asked, after Sanchez testified he was not sure if the second woman saw defendant, "What did this lady do next?" Sanchez responded, "She got in her car and she sped off." Defendant's counsel objected as speculation. The trial court responded, "As phrased, sustained."
During cross-examination, defense counsel asked, "Now, how long was he doing this movement that you referred to as masturbation towards the second individual?" Sanchez responded, "Say maybe a minute, two minutes. [¶] Like I said, he was kind of looking for someone so it was pretty quick injured [sic] in the car. Kind of seemed like [he] saw [me]." Defendant's counsel objected to the response, which was stricken.
On redirect, the prosecutor asked Sanchez specific questions about the second woman who defendant was masturbating in front of. He asked if he observed the woman walk in front of defendant's vehicle. Sanchez responded, "Not in front of the car. I could see that she noticed him and then she sped up, got in her car and left." Defendant's counsel objected to the answer and it was stricken.
On direct examination of Garcia, the prosecutor asked, "What did you see him do after the police pulled up?" Garcia responded, "He panicked, like, and sat in his car." Defendant's counsel objected as speculation and the objection was sustained. The answer was stricken from the record by the trial court.
2. STANDARD OF REVIEW
" ' "The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " ' " (People v. Zambrano (2004) 124 Cal.App.4th 228, 241.)
Prosecutorial misconduct that violates state law is only cause for reversal when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward conduct. (People v. Milner (1988) 45 Cal.3d 227, 245; see also People v. Crew (2003) 31 Cal.4th 822, 839.)
3. FORFEITURE
The People contend defendant forfeited his claim of prosecutorial misconduct by failing to object on this ground in the trial court. "'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' [Citation.] [¶] The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ' "an admonition would not have cured the harm caused by the misconduct." ' [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' " (People v. Hill (1998) 17 Cal.4th 800, 820, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Here, defendant did object to the testimonies of Sanchez and Garcia as "speculative." However, at no time did defendant alert the trial court that he believed the questions posed by the prosecutor were misconduct; nor did he request an admonition relative to this misconduct. Defendant's failure to object to the questions by the prosecutor on the ground of prosecutorial misconduct forfeits the issue on appeal.
4. THERE WAS NO PROSECUTORIAL MISCONDUCT
Nonetheless, there was no misconduct. As set forth in detail ante, defendant objected to the answers given by Sanchez and Garcia as "speculative." In reviewing the record, the questions posited by the prosecutor to Sanchez and Garcia did not seek to elicit speculative responses; Sanchez and Garcia volunteered information describing what they thought the other observers were thinking or feeling. The prosecutor asked questions as to what Sanchez "saw" and where the other observers and defendant were located. He asked Garcia what she "saw" defendant do when the police arrived.
" 'Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.' " (People v. Chatman (2006) 38 Cal.4th 344, 379-380; see also People v. Crew, supra, 31 Cal.4th at p. 839 [witness's answer to question from the prosecutor that was not responsive to what the prosecutor asked was not misconduct on behalf of the prosecutor].) Here, despite being asked what he "observed," Sanchez volunteered additional information. Garcia also volunteered information. The prosecutor did not ask questions seeking to elicit speculative testimony. There simply was no prosecutorial misconduct.
Moreover, defendant provides no cogent argument that the error here was based on the improper admission of speculative testimony. We will not make such an argument for defendant.
5. PREJUDICE
Even if this court could conceivably consider that the prosecutor committed misconduct in this case, we find it was not prejudicial. Clearly, there was no federal constitutional violation, and defendant appears to so concede by only addressing the standard for state law error. As stated, reversal based on state law error is only required when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward conduct. (People v. Milner, supra, 45 Cal.3d at p. 245.)
Here, almost all of the complained of responses to the prosecutor's questions were stricken from the record. The jury was instructed twice that, "Nothing that the attorneys say is evidence . . . Their questions are not evidence." They were further instructed that during the trial the attorneys might object to questions asked of a witness and the court would rule on the objections according to the law. If the court sustained an objection, the witness would not be permitted to answer and the jury "must" ignore the question. If a witness did not answer, the jury was not to guess what the answer might have been or why the court ruled as it did. If the court ordered testimony stricken from the record, the jury "must" disregard it and must not consider that testimony for any purpose. We must presume the jurors followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Moreover, the evidence was overwhelming that defendant committed the crime of indecent exposure without the reactions of other observers. "Generally, a conviction for indecent exposure requires proof of two elements: '(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present others to be offended or annoyed thereby.' " (People v. Carbajal (2003) 114 Cal.App.4th 978, 982.)
Here, Sanchez observed defendant on two occasions stand by his car with his pants down masturbating. Sanchez had his three-year old daughter in the car. Sanchez was clearly offended by defendant's actions occurring in front of his three-year-old daughter. The prosecutor relied on Sanchez and Garcia being offended to support the crime in this case during closing argument. Any conceivable error was harmless.
B. PITCHESS MOTION
Defendant asks this court to review the sealed in camera hearing transcript to determine if the trial court properly exercised its discretion to deny the request for the personnel records of Deputy Ortiz.
The People object to this review as a waste of judicial resources because defendant was acquitted on the count involving the billy club/baton. They argue the Pitchess motion was relevant only to that charge. Initially, the People provide no authority for this "mootness" argument. Further, Deputy Ortiz was the arresting officer on both crimes, and it arguably was relevant to his investigation and arrest of defendant on the indecent exposure count. --------
2. ADDITIONAL FACTS
Prior to trial, defendant filed his notice and motion for discovery of police personnel records (Pitchess Motion). Defendant sought the law enforcement personnel records of Deputy Ortiz. He sought any and all information regarding the fabrication of evidence, discipline imposed on Deputy Ortiz, and any other impeaching material. Defendant alleged that Deputy Ortiz filed a false police report in regards to the location of the baton found in his car and the information was sought to impeach the deputy's credibility.
The Custodian of Records of the San Bernardino County Sheriff's Department opposed the Pitchess Motion. Defendant's request was merely a "fishing expedition," which was not supported by good cause.
In court, with the parties present, San Bernardino County Sheriff's Sergeant Paul Schaefer appeared as the custodian of records. The following oath was given to Sergeant Schaefer: "You do solemnly state that you have reviewed all possible locations where the records sought were located, that a complete and thorough search was conducted and that the records brought reflect the records sought in the Court's order, so help you God?" Sergeant Schaefer responded, "I do." The trial court found that defendant had shown good cause to proceed with the Pitchess Motion. An in camera hearing was conducted with Sergeant Schaefer present. The trial court found no discoverable relevant information.
3. ANALYSIS
"In [Pitchess], we recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer's personnel file that is relevant to the defendant's ability to defend against a criminal charge. 'In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as "Pitchess motions" . . . through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.' " (People v. Mooc (2001) 26 Cal.4th 1216, 1219-1220 (Mooc).) " 'Traditionally, Pitchess motions seek information about past complaints by third parties of excessive force, violence, dishonesty, or the filing of false police reports contained in the officer's personnel file.' " (People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 710.)
In order to obtain these records, a defendant must file a motion seeking the records and serve the governmental agency having custody of the records sought. The motion should describe the records which are sought and the materiality to the pending litigation. (People v. Johnson, supra, 61 Cal.4th at p. 710.) " 'If the trial court concludes the defendant has fulfilled these prerequisites and made a showing of good cause, the custodian of records should bring to court all documents "potentially relevant" to the defendant's motion. [Citation.] The trial court "shall examine the information in chambers" [citation], "out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present" [citations]. Subject to statutory exceptions and limitations, . . . the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation." ' " (Id. at pp. 710-711.)
"Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations. In this manner, the Legislature has attempted to protect the defendant's right to a fair trial and the officer's interest in privacy to the fullest extent possible." (Mooc, supra, 26 Cal.4th at p. 1227.)
The record of the in camera hearing is sealed. On appeal, neither party is allowed to read the sealed record. (See People v. Hughes (2002) 27 Cal.4th 287, 330.) The appellate court must independently review the sealed record when the issue is raised on appeal. (People v. Prince (2007) 40 Cal.4th 1179, 1285.)
We review the trial court's decision regarding the discoverability of material in police personnel files under the abuse of discretion standard. (People v. Cruz (2008) 44 Cal.4th 636, 670.) Here, having reviewed the sealed transcript of the Pitchess hearing, we conclude the trial court may have unduly restricted the disclosure of material information.
In this case, the documents screened by the trial court were not made part of the record on appeal. The trial court found two items non-discoverable because they were unfounded. However, unsustained complaints are discoverable. (People v. Zamora (1980) 28 Cal.3d 88, 93, fn.1.) Moreover, the trial court did not describe for the record the circumstances involved with these two items. While the trial court also found these two items not relevant to the issues in this case, it is impossible to determine if the trial court based its decision solely on this reason or because the items were unfounded. Moreover, the trial court failed to include the records and did not describe the items in detail for the record. Without the documents that were reviewed by the trial court, it is not possible for this court to conduct "meaningful appellate review" of the trial court's ruling. (Mooc, supra, 26 Cal.4th at p. 1228.)
We will conditionally reverse the judgment and remand for a new Pitchess hearing. If the trial court finds that no documents are discoverable, it shall make an appropriate record and the judgment may be reinstated. If the trial court determines that defendant was entitled to Pitchess discovery, it must provide that discovery and give defendant an opportunity to demonstrate prejudice; in other words, to show a reasonable probability that the outcome would have been different had the information been disclosed earlier. (See People v Gaines (2009) 46 Cal.4th 172, 176, 181.) If defendant fails to show prejudice, the judgment may be reinstated, and if he shows prejudice, a new trial on the indecent exposure charge would be necessary.
DISPOSITION
The judgment is conditionally reversed. The cause is remanded to the trial court with directions to hold a new hearing on the Pitchess Motion. If the trial court finds there are discoverable records, it shall provide the discovery and give defendant the opportunity to establish a reasonable probability that the outcome of his case would have been different if the information was disclosed. If the trial court finds there are no discoverable records, or that defendant has not met his burden of showing prejudice, the judgment shall be reinstated as of that date. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.